9911796707
TMI Blog2018 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... er have rightly rejected the refund claim holding that appellant was availing the benefit of N/N. 67/1995–CE dated 16th March, 1995? - Held that:- The said ground is not available to Revenue as Revenue has no new case can be made out in the second round of litigation as has been held by a Division Bench of this Tribunal in Rajasthan Spinning & Weaving Mills vs. CCE [1998 (3) TMI 434 - CEGAT, NEW DELHI]. Whether the refund if hit by unjust enrichment? - Held that:- It is an admitted fact that the appellant had informed the Revenue vide letter dated 01 August, 2004 to allow clearances without payment of duty as they are claiming exemption under S.No. 181 of N/N. 6/2002 – CE as Revenue insisted on payment of duty for clearance - matter rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period Aug, 04 to March, 06 on account of duty paid under protest alongwith necessary documents. 11.04.2008 Appellant filed refund claim of ₹ 5,65,325/- for the period April, 06 to March, 08 on account of duty paid under protest alongwith necessary documents. 21.7.2008 Appellant replied to the letter of Superintendent of Central Excise Range-II, Moradabad that exemption Notification is applicable to us and no incidence of duty has been passed on. 19.09.2008 Ex-parte Order-in-Original has been passed by the learned Assistant Commissioner, Moradabad rejecting our refund claim on the ground that :- Appellant reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) rejected the appeals of the appellant on the grounds that:- Appellant availing the benefit of Notification No. 67/95-CE dated 16.03.1995, therefore, refund cannot be granted to them Refund is hit by unjust enrichment. 2011 Appeals filed before this Hon ble Tribunal by challenging the impugned orders on various grounds and praying for setting aside the impugned orders. 3. The learned counsel for the appellants states that the ruling of Mewar Bartan Nirman Udyog have been decided in favour of the assessee by order dated 30 September, 2008 reported at 2008 (231) ELT 27 (SC), wherein under similar facts and circumstances after examining preceding Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er intended for use in the manufacture of utensils which attract nil rate of duty. In this case, circles manufactured by the assessee are made from brass. Therefore, in our view, S.No. 200 would apply and the assessee would be entitled to claim nil rate of duty under the said Notification. 4. Thus, the first ground of rejection of refund is stand settled by Hon ble Supreme Court is regarding applicability of Notification No. 6/2002 CE in the facts of the appellant's case. The second issue which arises is whether in the second round of litigation. The learned Commissioner (Appeals) by his order dated 27 January, 2011, whether have rightly rejected the refund claim holding that appellant was availing the benefit of Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Department. Accordingly, the appellant prays for allowing the appeal with consequential benefits. 5. The learned AR for the Revenue relied on the impugned order. 6. Having considered the rival contentions I hold that the issue on merits stands decided in favour of the appellant assessee. So far the applicability of Notification No. 6/2002 CE dated 01 March, 2002 is concerned. Accordingly, I hold that the appellant is entitled to refund of the duty deposited under protest. So far the issue of unjust enrichment is concerned. I remand the matter of this issue to the file of the Adjudicating Authority to grant the refund subject to verification of unjust enrichment. So far the other ground of rejection in the impugned order on the is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
